Citation Nr: 0927574
Decision Date: 07/23/09 Archive Date: 07/30/09
DOCKET NO. 04-29 150 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for left shoulder
disorder, for the purpose of accrued benefits.
2. Entitlement to service connection for right shoulder
disorder, for the purpose of accrued benefits.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
L. Crohe, Counsel
INTRODUCTION
The appellant is the surviving spouse of the Veteran who
appeared to have active service from September 1948 to July
1952 and from November 1988 to August 1991, with periods in
between of active duty for training (ACDUTRA) and inactive
duty training (INACDUTRA). He died in October 2003. These
matters are before the Board of Veterans' Appeals (Board)
from two separate rating decisions by the Waco Regional
Office (RO) of the Department of Veterans Affairs (VA). A
February 2002 rating decision continued to rate bilateral
hearing loss with occasional tinnitus as noncompensable,
denied service connection for chronic obstructive pulmonary
disease as a result of asbestos exposure, denied service
connection for left shoulder rotator cuff tear, and denied
service connection for right shoulder rotator cuff tear. A
February 2004 rating decision denied service connection for
the cause of death, service connection for Dependency and
Indemnity Compensation under 38 U.S.C.A. § 1318, eligibility
for Dependents' Educational Assistance (DEA) benefits and a
July 2004 statement of the case denied entitlement to accrued
benefits. In July 2006, the Board granted service connection
for tinnitus for the purposes of accrued benefits and
remanded the remaining claims for further development. An
October 2008 rating decision granted service connection for
cause of death and COPD, for the purposes of accrued
benefits, and DEA benefits. The only matters remaining
before the Board are as stated on the previous page.
FINDINGS OF FACT
The Veteran's left shoulder disorder is not shown to be
related to service.
The Veteran's right shoulder disorder is not shown to be
related to service.
CONCLUSIONS OF LAW
The criteria for entitlement to service connection for left
shoulder disorder for purposes of accrued benefits have not
been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5102, 5103, 5103A,
5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.159,
3.303, 3.304, 3.1000 (2008).
The criteria for entitlement to service connection for right
shoulder disorder for purposes of accrued benefits have not
been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5102, 5103, 5103A,
5107, 5121 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.159,
3.303, 3.304, 3.1000 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duty to Notify & Assist
The Board finds that VA has satisfied its duties to the
appellant under the Veterans Claims Assistance Act of 2000
(VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide.
VA has made all reasonable efforts to assist the appellant in
the development of her claims, has notified her of the
information and evidence necessary to substantiate the
claims, and has fully disclosed the government's duties to
assist her. In December 2003, August 2006, and January 2007,
the RO/AMC sent the appellant notice letters (hereinafter
"VCAA notification letter") that informed her of the type of
information and evidence necessary to support her claims.
The letters also informed the appellant of her and VA's
respective responsibilities for obtaining information and
evidence under the VCAA and contained a specific request for
the appellant to provide additional evidence in support of
her claims. She was asked to identify all relevant evidence
that she desired VA to attempt to obtain.
Complete notice was not provided until after the RO's initial
adjudication of her claims. However, VCAA notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004). In Mayfield v. Nicholson,
444 F.3d 1328 (Fed. Cir. 2006), the U.S. Court of Appeals for
the Federal Circuit held that the issuance of a fully
compliant VCAA notification followed by readjudication of the
claim in an SSOC is sufficient to cure a timing defect. In
this case, the claims were readjudicated in an October 2008
Supplemental Statement of the Case (SSOC). Thus, any timing
defect was cured.
During the pendency of this appeal, the Court further
redefined the requirements of the VCAA to include notice that
a disability rating and an effective date for award of
benefits would be assigned if service connection is awarded.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board interprets the ruling in Dingess/Hartman as
applying to any matter involving an award of a disability
rating and/or an effective date for award of benefits.
However, since the claims on appeal are for service
connection for the purposes of accrued benefits, any
questions as to the appropriate disability rating or
effective date to be assigned are rendered moot. VA is not
required, therefore, to provide this notice.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claims. The Board is
satisfied that its duty has been met and that all reasonable
efforts to develop the record have been made. The RO/AMC
requested and obtained the Veteran's service records and
service treatment records. The Board notes that accrued
benefits cases must be adjudicated on the basis of the
evidence of record (either actually or constructively) at the
time of the Veteran's death. 38 U.S.C.A. § 5121. There is
no indication of any records that could be constructively of
record (i.e. VA records) that would be pertinent to this
appeal. The accrued benefit claims necessarily involve a
retroactive review of the evidence of record at the time of
the Veteran's death, and no prejudice accrues to the claimant
for any deficiency posed by the timing of the VCAA letter.
VCAA development is not required in connection with a claim
that cannot be substantiated where, as here, no factual
development could lead to an award. VAOPGCPREC 5-2004, 69
Fed. Reg. 59989 (2004). Thus, no development at this time
could possibly change the disposition of this case. The
Board concludes, therefore, that decisions on the merits at
this time do not violate the VCAA, nor prejudice the
appellant under Bernard v. Brown, 4 Vet. App. 384 (1993).
Based on the foregoing, the Board finds that the appellant
has not been prejudiced by a failure of VA in its duty to
assist, and that any violation of the duty to assist could be
no more than harmless error. See Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004).
II. Factual Background, Criteria, & Analysis
An accrued benefits claim arises after a Veteran has died.
Although a Veteran's claim does not survive his death, see
Landicho v. Brown, 7 Vet. App. 42, 47 (1994), certain
individuals may be entitled to accrued benefits under certain
conditions. Among the requirements for accrued benefits is
that a claim must be filed within the year after the
Veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. In
this case, the appellant's claims for accrued benefits were
received within one year of the Veteran's death.
Applicable law provides that an individual entitled to
accrued benefits may be paid periodic monetary benefits to
which a Veteran was entitled at the time of death under
existing ratings or based on evidence in the file at the time
of his death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The
Federal Circuit Court has also made it clear that, in order
to support a claim for accrued benefits, the Veteran must
have had a claim pending at the time of his death for such
benefits or else be entitled to them under an existing rating
or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West,
136 F.3d 1296 (Fed. Cir. 1998).
At the time of his death, the Veteran had a claim pending
with regard to issues seeking service connection for
bilateral shoulder disorders. His widow has since pursued
those claims.
An accrued benefits claim is, under the law, derivative of,
and separate from, the Veteran's claims. See Zevalkink v.
Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236
(Fed. Cir. 1996). Thus, in the adjudication of a claim for
accrued benefits, the claimant is bound by the same legal
requirements to which the Veteran would have been bound had
he survived to have his claims finally decided.
In considering the appellant's claim for accrued benefits,
generally, only evidence contained in the claims file at the
time of the Veteran's death is evaluated. 38 U.S.C.A.
§ 5121; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4
Vet. App. 353, 360-61 (1993), the Court held that service
department and certain VA medical records are considered as
being constructively in the claims file at the date of death
although they may not physically be in there until after that
date.
The pertinent provisions refer to service department records,
reports of VA hospitalizations, reports of treatment by VA
medical centers, reports of treatment authorized by the VA,
and reports of autopsy made by VA on date of death.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Active military, naval, or air service includes any period of
ACDUTRA during which the individual concerned was disabled
from a disease or injury incurred or aggravated in the line
of duty, and any period of inactive duty training (INACDUTRA)
during which the individual concerned was disabled from an
injury incurred or aggravated in the line of duty. 38
U.S.C.A. § 101(24) (West 2002); see Mercado-Martinez v. West,
11 Vet. App. 415 (1998); see also Paulson v. Brown, 7 Vet.
App. 466, 469-70 (1995) ("an individual who has served only
on active duty for training must establish a service-
connected disability in order to achieve Veteran status");
Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus,
service connection may be granted for disability resulting
from disease or injury incurred or aggravated while
performing ACDUTRA, or from an injury incurred or aggravated
while performing INACDUTRA. 38 U.S.C.A. §§ 101(24).
Presumptive periods do not apply to ACDUTRA or INACDUTRA.
Biggins, supra.
Initially, the Board notes that at the time of his death in
October 2003, the Veteran had a pending claim of entitlement
to service connection for left and right shoulder disorders.
The appellant asserts that she is entitled to accrued
benefits.
Service treatment records (STR's) included a July 1979
treatment record for muscle pull, upper back. It was noted
that while the Veteran was on active duty for training he
experienced pain in the left arm and shoulder from helping to
unload weapons racks from a truck. He was given pain
medication and released. No further medical treatment was
necessary. April 1967 and January 1977 entrance
examinations; August 1968, February 1981, May 1984, January
1986, March 1986, and September 1989 periodic examinations;
and an August 1991 retirement examination, were negative for
any complaints, treatment or diagnoses of a disorder in the
left and/or right shoulder. Clinical evaluations of the
upper extremities were normal. Likewise, April 1967,
November 1967, January 1977, February 1981, March 1986, and
August 1991 reports of medical history were negative for
swollen or painful joints, or painful or "trick" shoulder
or elbow. Only on September 1989 report of medical history
did the Veteran indicate that he had painful or "trick"
shoulder or elbow. It was noted to see his records.
On January 1994 VA examination, it was noted that he Veteran
had complaints of shoulder pain. He reported that while he
was in service he was riding on a truck, a riffle rack fell,
he grabbed it with his right arm, and injured his right
shoulder. He indicated that he had trouble with the shoulder
ever since that incident. An examination of the shoulder
revealed that he could abduct and anterior elevate his
shoulder to 170 degrees. He had 90 degrees of internal and
external rotation, and there was some crepitus felt in the
shoulder. X-rays of the right shoulder were within normal
limits. The diagnosis was history of shoulder injury with
some loss of motion and pain in the shoulder.
An October 1994 rating decision denied service connection for
the condition because there was no chronic or permanent right
shoulder disability shown on separation examination or on VA
examination.
June 2000 treatment records from Dr. S. H. showed that the
Veteran had complaints of numbness and weakness in his left
arm, pain in his neck, and pain in his chest wall and
shoulder area where he had shingles. The impression was post
herpetic neuralgia and cervical degenerative joint disease
with radicular symptoms.
Treatment reports from Dr. R. C. M. included a June 2000 MRI
that revealed a large effusion and rotator cuff tear of the
left shoulder.
A July 2000 treatment record from Dr. J. C. G. showed that
the Veteran was seen for complaints of left shoulder pain of
several weeks duration. There was some questionable history
of a long ago injury to his left shoulder, as well as a
severe motor vehicle accident six years ago. He had
significant discomfort in his left arm for the past few weeks
and last night strained his right shoulder avoiding burning
himself on a hot object. After an MRI, the impression was
chronic irreparable left rotator cuff tear, impingement
syndrome of the left shoulder, and degenerative glenohumeral
joint. Dr. J. C. G. commented that from the appearance of
the plain x-ray and the MRI scan, he suspected that this had
been a very long standing chronic rotator cuff tear complete
with avulsion of the rotator cuff from the humeral head.
There were degenerative changes noted as well and very poor
active ranges of motion.
September to October 2000 treatment reports from Dr. K. C. W.
noted that the Veteran reported that he injured both
shoulders unloading shingles from his truck 3-4 months
earlier. His job involved hauling shingles. He also
reported that he injured the shoulders 10-15 years ago. It
was noted that an MRI from Dr. G. showed an old injury. This
report was not reviewed. The impression was massive rotator
cuff tears and insufficiency bilaterally and was developing
cuff tear arthropathy. Bilateral injections were preformed.
October 2000 treatment records from Dr. L. W. showed that the
Veteran was seen for bilateral shoulder pain and limitation
of motion. He reported a history of injuring both shoulders
during service.
An April 2003 record from Dr. K. C. W. noted that the Veteran
continued to have findings consistent with bilateral rotator
cuff insufficiency. Dr. K. C. W. noted that the Veteran had
a history of a rotator cuff injury on the right in 1988.
In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
appellant is not entitled to accrued benefits.
The appellant did file an application for accrued benefits
within one year of the Veteran's death. However, as will be
explained below, service connection for bilateral shoulder
disorder was not warranted. As such, there were no unpaid
benefits to which the Veteran was entitled to at the time of
his death.
The Board concludes that the Veteran was not entitled to
service connection for bilateral shoulder disorders at the
time of his death.
On review of the record, the Veteran's indicated that he had
shoulder problems since service, the Board acknowledges that
he was competent to give evidence about what he experienced;
i.e., that he had shoulder pain since service. See Charles
v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran
competent to testify to symptomatology capable of lay
observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994)
(noting competent lay evidence requires facts perceived
through the use of the five senses). However, the Veteran
was not competent to testify that he developed a chronic
bilateral shoulder disability from an event or injury in
service, including the pulled muscle in the left shoulder
noted in 1979 during ACDUTRA. Where a determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. See Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). There is no indication in the record
that the Veteran was a physician. Therefore, as a layperson,
he was not competent to provide evidence that required
medical knowledge because he lacked the requisite
professional medical training, certification and expertise to
present opinions regarding diagnosis and etiology. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Veteran
was certainly competent to testify as to the fact he had
injuries and to symptoms, such as shoulder pain or physical
limitations, which are non-medical in nature, however, he was
not competent to render a medical diagnosis. See Barr v.
Nicholson, 21 Vet. App. 303 (2007) (lay testimony is
competent to establish the presence of observable
symptomatology that is not medical in nature); see also,
Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain
disabilities are not conditions capable of lay diagnosis).
Furthermore, although the Veteran indicated that he had
chronic shoulder problems since his injury in service, this
assertion was inconsistent with his STR's. STR's showed that
the Veteran reported a one-time injury to his left shoulder
in 1979 from helping to unload weapons racks from a truck.
Although the Veteran indicated that he had painful or
"trick" shoulder or elbow on September 1989 report of
medical history, it was noted to see his records and a review
of his records only noted the above-mentioned shoulder pull
in 1979. Aside from being prescribed pain medication at the
time of treatment, no further medical treatment from that
injury was necessary. Other STR's, including an August 1991
retirement examination, were negative for any complaints,
treatment, or diagnoses of any shoulder disorder. The Board
is of the opinion that the contemporaneous STR's which weigh
heavily against the claim had greater probative value than
the Veteran's reported history many years later. The STR's
were a record of objective examination, while the history
reported to VA and to the Veteran's doctors were potentially
biased by the possibility of monetary gain. Moreover, the
fact that the STR's were prepared at the crucial time (i.e.
while the Veteran was still in service), give the STR's
greater evidentiary value than a recollection made many years
later based on a potentially faulty memory.
Based on a review of the claims file, the Board finds that
the Veteran's claim of entitlement to service connection for
a right and/ or left shoulder disorder was not been shown to
be related to service. The more persuasive evidence of
record, the Veteran's STR's, were absent for any indications
of a chronic shoulder disability. Additionally, in regards
to the bilateral shoulder disorder, there was no competent
medical evidence that the Veteran's bilateral shoulder
disorder was related to an event or injury in service.
Although, the various physicians noted that the Veteran
reported a history of injuring either his right or left
shoulder, or both during service, the Court has held that a
bare transcription of lay history, unenhanced by additional
comment by the transcriber, is not competent medical evidence
merely because the transcriber is a health care professional.
LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Other than
the Veteran's own self-reported medical history, the post
service treatment records were devoid of any indication that
the Veteran's left or right shoulder disorders were
etiologically linked to his active duty service.
The Board notes that the January 1994 VA examination report
diagnosed the Veteran with a history of shoulder injury with
some loss of motion and pain in the shoulder. The history
provided by the Veteran was that he injured his right
shoulder in service as a result of grabbing a weapons rack
and the objective examination revealed a loss of motion and
pain in the right shoulder. The Court has held that VA
cannot reject a medical opinion simply because it is based on
a history supplied by the Veteran and that the critical
question is whether that history was accurate. Kowalski v.
Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v.
Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a
Veteran's statement renders a medical report incredible only
if the Board rejects the statements of the Veteran).
However, STR's were negative for a right shoulder injury.
Rather, STR's showed one-time treatment for a left shoulder
injury. Here, the Board finds that the Veteran's reported
history was not accurate. As such, the references by the VA
examiner to right shoulder injury in service and a possible
relationship to the alleged right shoulder injury were
without probative value. Likewise, although Dr. J. C. G.
indicated in July 2000 that the Veteran had a very long
standing chronic rotator cuff tear complete with avulsion of
the rotator cuff from the humeral head in the left shoulder,
Dr. J. C. did not date the shoulder disorder back to the
Veteran's time in service and specifically noted that the
Veteran had been in a motor vehicle accident six years ago.
The only evidence of record which linked any right or left
shoulder disorder to the Veteran's active duty service was
the Veteran's own allegations and testimony. As noted above,
the Veteran was not competent to provide evidence as to the
etiology of his bilateral shoulder disorders.
Accordingly, in the absence of evidence demonstrating that
the Veteran's bilateral shoulder disorder was in any way due
to service, there is no basis upon which accrued benefits may
be assigned. As such, service connection for a bilateral
shoulder disorder, for the purposes of accrued benefits must
be denied. 38 C.F.R. § 3.303.
ORDER
Service connection for left shoulder disorder, for the
purpose of accrued benefits is denied.
Service connection for right shoulder disorder, for the
purpose of accrued benefits is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs